TOWN OF FREETOWN, by and through its BOARD OF SELECTMEN and BUILDING COMMISSIONER v. TOWN OF FREETOWN ZONING BOARD OF APPEALS, JAMES FRATES, GARY GUINEN, DANIEL A. LORANGER, and KIM PINA, as members of the TOWN OF FREETOWN ZONING BOARD OF APPEALS, and JOHN CHACE

Plaintiff, the Town of Freetown, commenced this case on February 28, 2008, as an appeal, pursuant to G.L. c. 40A, § 17, of a constructive approval by the defendant, the Town of Freetown Zoning Board of Appeals, of (1) a building permit application; (2) a septic plan; and (3) a variance concerning a parcel of real property, known as and numbered 0 Cleveland Park Road in Freetown.

On October 1, 2008, plaintiff filed a Motion for Partial Summary Judgment. Defendant, John Chace opposed the motion on December 10, 2008. On January 27, 2009, plaintiff filed a reply to the defendant’s opposition. The motion was argued on February 6, 2009, and is the matter presently before the Court.

After reviewing the record before the Court, I find that the following facts are not in dispute:

1. Paul R. Bourgeois is the Building Commissioner, Zoning Enforcement Officer, and Health Agent of the Town of Freetown.

2. Defendant, John Chace is the owner of a parcel of real property, known as and numbered 0 Cleveland Park Road in Freetown (“Property”).

3. On February 6, 2007, Mr. Chace went before the Town of Freetown Planning Board for a determination on whether the Property was located on a valid way in existence when the subdivision control law became effective in Freetown, pursuant to Article 11, § 11.3.

4. The Planning Board voted to direct the Administrator to submit a letter stating that the Planning Board determined that Cleveland Park Road is “a way in existence prior to subdivision control and of sufficient width and grade,” as described in Article 11, § 11.3, but that Board makes no determination regarding frontage, area, or buildability of the Property. This letter was submitted on February 27, 2007.

5. The Board also informed Mr. Chace that he could only obtain a building permit from the Building Commissioner.

6. On or before February 7, 2007, Mr. Chace filed an application with the Building Commissioner for a building permit to construct a single-family dwelling on the Property.

7. On February 7, 2007, the Building Commissioner orally denied the building permit application to Mr. Chace, on the ground that the Property lacked sufficient frontage on a valid way, pursuant to Article 11, § 11.3 of the Town of Freetown General and Zoning By-Laws.

8. During that conversation, the Building Commissioner informed Mr. Chace that if the Planning Board determined that Cleveland Park Road complied with Article 11, § 11.3, then he would reconsider his decision.

9. The Building Commissioner wrote a letter dated February 7, 2007, denying the building permit application, on the ground that the property lacked sufficient frontage, pursuant to Article 11, § 11.3.

10. Subsequently, Mr. Chace spoke with the Building Commissioner. The Building Commissioner instructed plaintiff to file a Septic Plan as a prerequisite to the issuance of the building permit.

11. In accordance with Mr. Bourgeouis’ instructions, on August 28, 2007, Mr. Chace filed a plan with the Board of Health of the Town of Freetown, titled “Sanitary Sewage Disposal System Cleveland Park Road,” for an on-site sanitary sewage disposal system on the Property (“Septic Plan”).

12. By letter dated September 26, 2007, Mr. Bourgeouis denied the Septic Plan, on the ground that the proposed system did not meet the setback requirements of the State Environmental Code, Title V, § 310 CMR 15.211 (“September Decision”).

13. The first sentence of the September Decision states: “I am in receipt of your plan labeled ‘Sanitary Sewage Disposal System Cleveland Park Road’….”

14. The September Decision continues by listing four “issues associated with the Septic Design.”

15. In the September Decision, Mr. Bourgeouis then states that “in addition to being the health agent, I am also the Building Commissioner and the Zoning Enforcement Officer.”

16. Mr. Bourgeouis continues that “the septic system issues are irrelevant, as I do not feel the lot is buildable as it lacks frontage on a public way, a town approved way, or a way in existence prior to subdivision control.”

17. The September Decision concludes that “I must deny approval of your septic plan and site plan, as it does not conform to the Town of Freetown Health Regulation and The Town of Freetown Zoning Bylaws.”

18. On October 24, 2007, Mr. Chace appealed the September Decision, to the Zoning Board of Appeals. The appeal challenges both the denial of the building permit application and the denial of the Septic Plan.

19. The Board did not issue a decision on the Building Permit application within one hundred days of the issuance of the September Decision.

20. On February 11, 2008, Mr. Chace filed a notice of constructive approval with the Town Clerk of the Town of Freetown. This appeal followed.

*** Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the Court reviews “the evidence in the light most favorable to the nonmoving party….” Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).

In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Town of Norwood v. Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) (citing Anderson v. Liberty, 477 U.S. 242, 247-48 (1986)). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248 (cited in Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006)); Molly A. v. Comm’r of the Dept. of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether “the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.

With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case, or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805 , 809 (1991). The party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). However, where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).

When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The court does not “pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from “pleadings, [Note 1] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with…affidavits, if any….” Mass. R. Civ. P. 56(c).

In the instant matter, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and, therefore, this case is proper for summary judgment. Rule 56(c).

General Laws, chapter 40A, § 17 requires that “[t]he court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require.” 40A, § 17. The Supreme Judicial Court has interpreted § 17 to require that a court hearing an appeal pursuant to 40A, § 17 apply a combination of de novo review and deference to the judgment of the municipal authority. Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953) (and case cited). The Trial Court must review the evidence and make findings of fact without deference to the board’s findings. Id.; Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987); see G.L. c. 40A, § 17. In this review, the court is not limited to the evidence that was before the board. Bicknell Realty Co., 330 Mass. at 679; Marr v. Back Bay Architectural Cmm’n, 32 Mass. App. Ct. 962 , 963 (1992); Crittenton Hastings House of the Florence Crittenton League v. Bd. of Appeal of Boston, 25 Mass. App. Ct. 704 , 713-24 (1988).

However, this review is circumscribed by the requirement to defer to the judgment of the municipal board. Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954); Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); S. Volpe & Co., Inc. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). The court is solely concerned with “the validity but not the wisdom of the board’s action.” Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A court hearing a § 17 appeal is not authorized to make administrative decisions. Pendergast, 331 Mass. at 557-58; Geryk, 8 Mass. App. Ct. at 684. If reasonable minds may differ on the conclusion to be drawn from the evidence, the board’s judgment is controlling. ACW Realty Mgmt., Inc. v, Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); Dowd v. Bd. of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-55 (1977); Copley v. Bd. of Appeals of Canton, 1 Mass. App. Ct. 821 (1973). However, in limited circumstances the Trial Court may substitute its judgment for that of the board’s, where “justice and equity” require. G.L. c. 40A, § 17; Pendergast, 331 Mass. at 558.

Therefore, the court may overturn the board's decision only if the decision is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246. However, where the court’s findings of fact support any rational basis for the municipal board’s decision, that decision must stand. MacGibbon, 356 Mass. at 639; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246.

In the instant case, Mr. Chace denies ever having received Mr. Bourgeouis’s written denial of the building permit application, dated February 7, 2007. Nonetheless, Mr. Chace admits that Mr. Bourgeouis, in his capacity as the Building Commissioner of the Town of Freetown, orally denied the application to him, the same day. [Note 2] Nothing in General Laws chapter 40A requires that a zoning decision be made in writing. See 40A, § 8. However, this does not mean that a municipality may not require a writing. See Peterson v. Cargill, 14 LCR 403 , 406 (2006) (Misc. Case Nos. 267044) (Long, J.). Here there is nothing in the record to indicate that the Town of Freetown General and Zoning By-Laws have such a requirement.

Moreover, the purpose of the writing requirement is, in part, to provide sufficient notice to aggrieved neighbors who may wish to seek appellate review. See Town of Walpole Bd. of Selectmen v. Fin. Inv. Corp., 1 LCR 104 , 106 (1993) (Misc Case No. 182042) (Kilborn, J.). Here, that concern does not apply; Mr. Chase, himself, was the aggrieved party, and he was given notice directly of the Building Commissioner’s decision. Therefore, the Building Commissioner’s February 7, 2007, verbal denial of the building permit application was a valid and effective decision (“February Decision”). Accordingly, I rule that there was no timely appeal of the February Decision. Thus, the Zoning Board of Appeals did not have the authority to constructively approve the building permit application.

The appeal period for this decision ran until March 9, 2007, pursuant to G.L. c. 40A, § 15. Mr. Chace did not appeal from this decision during this period. Accordingly, I rule that the appeal of the denial of the building permit application is untimely.

Mr. Chace next argues that the February Decision left open the possibility that the Building Commissioner would reconsider that decision if Mr. Chace provided further evidence that the Property met frontage requirements, pursuant to Article 11, § 11.3, and that the Building Commissioner did so reconsider that decision in the September Decision. The February Decision states that the “[Building Commissioner] will reevaluate this decision if the Planning Board determines that Cleveland Park [Road] is ‘a way in existence prior to subdivision control and of sufficient width and grade’ as described in Article 11, Sec. 11.3 and that the lot in question has frontage on Cleveland Park Road.” (Pl.’s Statement of Material Facts Supp. Summ. J. Ex. B). When the Board made such a determination, Mr. Bourgeouis asked Mr. Chace to file a Septic Plan as a prerequisite to the issuance of the building permit. In the September Decision denying the Septic Plan, Mr. Bourgeouis states that “the septic system issues are irrelevant, as I do not feel that lot is buildable as it lacks frontage on a public way, a town approved way, or a way in existence prior to subdivision control.” (Pl.’s Statement of Material Facts Supp. Summ. J. Ex. D, 2).

There is nothing in the record to indicate that the Freetown Building Commissioner has the authority to make a partial or intermediate decision on a building permit application, which decision he or she may reconsider at a later time and, thereby, restart the appeal period. In the instant case, Mr. Chace filed his application for a building permit; the February Decision ultimately decided that application; and Mr. Chace had one, thirty-day appeal period in which to appeal that decision, which he missed.

It is true that Mr. Bourgeouis misstated his authority to reconsider the February Decision. The fact that he misunderstood and erroneously represented to Mr. Chace, his authority to do so does not change the fact that a Building Commissioner cannot reconsider a decision once issued. Similarly, Mr. Chace did not have the ability to move Mr. Bourgeouis to reconsider his decision. The only recourse that Mr. Chace had was to appeal for zoning relief from the Board of Appeals within the thirty day appeal period. Moreover, prudence dictates that Mr. Chace, by his counsel, should have preserved his appellate rights by filing an appeal of the February Decision within the thirty-day period, while pursuing the instructions of the Building Commissioner. Mr. Chace, by his counsel, blames Mr. Bourgeouis for causing Mr. Chace to file his appeal late; however, the evidence makes it clear that Mr. Chace received the Board’s letter opining that Cleveland Park Road met the requirements of Article 11, § 11.3 on February 27, 2007—within the thirty day appeal period—but that he waited until August 28, 2007 to further pursue Mr. Bourgeouis’ instructions. Even if Mr. Bourgeouis can be blamed for misleading Mr. Chace, Mr. Chace must share some of the blame for not acting expediently.

On September 26, 2007, when Mr. Bourgeouis denied the Septic Plan, the only filing pending before him was the Septic Plan; there was no longer a building permit application pending before the Building Commissioner. Thus, Mr. Bourgeouis could only have been acting in his capacity as the Health Agent of the Town of Freetown, and he could only have been acting on the Septic Plan.

Although, Mr. Bourgeouis, in the September Decision, does recall the issues he finds as Building Commissioner with the Property’s alleged lack of frontage, this was extraneous and irrelevant to the decision. His statements in this regard, although they admittedly make the decision less clear, cannot be construed, legally, as a re-decision of the building permit application. This decision was not within the power of a Building Commissioner.

I agree that the September Decision is somewhat unclear. Mr. Bourgeouis first lists “issues associated with the Septic Design,” but then states that they are irrelevant, because the lot is not buildable in any event, because of its lack of frontage. (Pl.’s Statement of Material Facts Supp. Summ. J. Ex. D, 1). However, it is clear from the opening sentence of the decision that the subject is the Septic Plan. Most persuasively, Mr. Bourgeouis’ conclusion is that “I must deny approval of your septic plan and site plan, as it does not conform to the Town of Freetown Health Regulations and The Town of Freetown Zoning Bylaws.” (Pl.’s Statement of Material Facts Supp. Summ. J. Ex. D, 2) (emphasis added). Regardless, the building permit application had been previously decided, and no matter how confusing this language, the September Decision could only have decided the Septic Plan. Accordingly, I rule that the September Decision decided only the acceptability of the Septic Plan.

Finally, G.L. c 111, §§ 31E and 32 provides that the Board of Health retains jurisdiction over a decision of a health officer. 111, §§ 31E and 32. Mr. Chace could only have appealed the September Decision to the Board of Health of the Town of Freetown. Accordingly, I rule that the Zoning Board of Appeals did not have jurisdiction to hear and decide that aspect of the appeal.

CONCLUSION

For the foregoing reasons, this Court concludes that the alleged constructive approval by the Zoning Board of Appeals of the Town of Freetown of Mr. Chace’s building permit application and Septic Plan was not proper. Mr. Chace’s appeal of the Building Commissioner’s decision to deny his building permit application was untimely. The February 7, 2007 oral denial of the building permit application was a valid decision, which started the appeal period. Mr. Chace did not appeal the decision in that period. Moreover, the Building Commissioner did not have the authority to reconsider his decision and, thereby, restart the appeal period. Nor did Mr. Chace have the ability to move the Building Commissioner to do so. As a result, the September Decision decided the acceptability of the Septic Plan, only. The only filing pending before Mr. Bourgeouis was the Septic Plan, which he clearly concluded did not conform with the Town of Freetown Health Regulations. Furthermore, any appeal of the decision of the Health Agent must be brought to the Board of Health of the Town of Freetown and not to the Zoning Board of Appeals. Therefore, the Zoning Board of Appeals did not have authority to approve the Septic Plan. Accordingly, the plaintiff, the Town of Freetown’s Motion for Summary Judgment is hereby ALLOWED.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: April 22, 2009